Mr. Chairman and Members of the Committee:

I am pleased to have the opportunity to submit this testimony on behalf on behalf of the National Veterans Legal Services Program (NVLSP). NVLSP is a nonprofit veterans service organization founded in 1980 that has been assisting veterans and their advocates for twenty-eight years. NVLSP has trained thousands of service officers and lawyers in veterans benefits law, and has written educational publications that thousands of veterans advocates regularly use as practice tools to assist them in their representation of VA claimants. NVLSP also conducts quality reviews of the VA regional offices on behalf of The American Legion. NVLSP also represents veterans and their families on claims for veterans benefits before VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other federal courts. Since its founding, NVLSP has represented over 1,000 claimants before the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (CAVC).  NVLSP is one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which recruits and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. 

We believe that the effectiveness of VBA training should be measured by the quality of the work product produced by VA adjudicators. Therefore, the quality and timeliness of VA adjudications should reflect the effectiveness or lack thereof, of VA training. Because the quality of VA adjudications is inadequate NVLSP must conclude that VBA training is not effective or adequate.

In the experience of NVLSP, (over ten years of quality reviews, in conjunction with The American Legion of  approximately 40 different VAROs combined with extensive NVLSP representation before the CAVC), most of the most egregious VA errors are a result of premature adjudications. Many VA managers emphasize quantity over quality. VA managers and VA adjudicators have let us know that because production is paramount, training is deemphasized because the time spent training reduces the time available to produce decisions, and the training of VA adjudicators regarding the procedures designed to protect the right of claimants seeking VA benefits also reduces production.

In September 2008, courageous VA regional office employees filed a grievance exposing this overemphasis on production. This grievance is attached to my testimony. The grievance asserts that:

• the regional office created and encouraged a culture in which quantity is emphasized to the detriment of  quality;
• the VARO failed to properly implement training initiatives to assure that those reviewing claims are sufficiently trained in the relevant disciplines so as to reduce errors, improve the quality of claims processing, and successfully complete newly-implemented certification requirements; and
• the VARO failed to properly implement a fair and impartial performance appraisal system that assures that quantitative measures of performance are not emphasized to the detriment of measures of the quality of that performance.

NVLSP believes that the quality of VARO adjudications is much worse than what is reported by the VA. The remand and reversal statistics produced by decisions issued by the Board of Veterans’ Appeals (BVA or Board) can be considered an independent review of the quality of adjudications performed by the VAROs.  BVA statistics provided by the Veterans Appeals Control and Locator System (VACOLS) for FY 07 reveal that Board decided over 40,000 appeals. The Board allowed 21.12 percent (that is, granted the claim that the VA regional office had denied) and remanded 35.36 percent of these appeals back to the VARO because the VARO had wrongly failed to obtain all of the evidence it should have attempted to obtain. Therefore, in 56.48 percent of the appeals decided by the BVA, the BVA either reversed or remanded the VARO decision. This 56.48 percent statistic could be considered an error rate. Even if we take into account the fact that new evidence can be added at the Board and deduct 20 percent from the 56.48 percent, an error rate as high as 36 percent is not acceptable and does not verify the low error rate claimed by VA in its VA Star Reports (close to a 90 percent “accuracy rate”). The reversal/remand rate thus far for FY 2008 is 59.4%.

The news gets worse. The BVA, in its rush to make final decisions and to avoid remands also quite often prematurely denies claims that should have been remanded.  Of course, the error was originally committed by the VARO, not the BVA. In September 2007, my fellow Joint Executive Director, Bart Stichman, testified that “[f]or more than a decade, the Court’s [Court of Appeals for Veterans Claims (Court or CAVC)] annual report card of the BVA’s performance has been remarkably consistent. The 12 annual report cards issued over the last 12 years yields the following startling fact: of the 16,550 Board decisions that the Court individually assessed over that period (that is, from FY 1995 to FY 2006), the Court set aside a whopping 77.7% of them (that is, 12,866 individual Board decisions). In each of these 12,866 cases, the Court set aside the Board decision and either remanded the claim to the Board for further proceedings or ordered the Board to award the benefits it had previously denied.  In the overwhelming majority of these 12,866 cases, the Court took this action because it concluded that the Board decision contained one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision.”

How should a veteran seeking VA disability benefits feel? The Board of Veterans’ Appeals reverses and remands over 50 percent of all VARO adjudications and the CAVC sets aside over 77 percent of the BVA decisions that it reviews. These numbers do not inspire confidence in the quality of VA adjudications.

It is clear that the adjudication culture at the VAROs needs to be changed. Many VA managers act like they are producing widgets rather than adjudicating claims filed by real people. Their goal is should not be just prompt adjudication; the goal should be a timely, accurate and fair adjudication.

Even VA employees are frustrated and upset by their lack of training and the overemphasis on production. The following is a quote from the grievance attached to my testimony.

“As set forth in the Grievance, management has: (1) established an environment in which “there is an extreme pressure to produce minimally acceptable work at any cost”; (2) “developed an employee culture where striving to achieve unreasonable production criteria is paramount and … actually doing difficult necessary work on cases is strongly discouraged on penalty of removal”; and (3) [management] commonly expresses sentiments such as, “just decide the case and let the veteran appeal.”

If the assertions in this grievance are true then we call upon VA Central Office management to hold regional office management accountable.

Thank you for permitting NVLSP to testify on such an important issue.

Kirkland and Ellis LLP
Chicago, IL
August 29, 2008

Via OVERNIGHT MAIL

Joyce A. Cange
Director, Cleveland Regional Office
Department of Veteran Affairs,
Veterans Benefits Administration
A.J. Celebrezze Federal Building
1240 East 9th Street
Cleveland, Ohio  44199

Re:  April 2008 Grievance Of Local 2823

Dear Ms. Cange:

I write to advise that Kirkland & Ellis LLP represents Local 2823 of the American Federation of Government Employees (“Local 2823”) in connection with the grievance that Local 2823 filed and amended in April 2008 (the “Grievance” or “GRV”), and I further write to respond to an April 25, 2008 memorandum (the “Memorandum” or “MEM”) from your office that denied the Grievance for various reasons.[1] 

1. The Grievance.

Local 2823’s Grievance demands resolution of several disputes that Local 2823 believes are negatively affecting the processing of veterans’ benefits claims at the Cleveland VA Regional Office (the “Cleveland VARO”).  Specifically, the Grievance states that management of the Cleveland VARO has, among other things:

1. created and encouraged a culture in which the quantity of benefits claims rated is emphasized to the detriment of the quality of the rating of those claims (see GRV at 3-4 ¶¶ (6)(b)-(d); hereafter, the “Culture Claim”);[2] 
2. failed to properly, equitably and promptly implement training initiatives to assure that those reviewing claims are sufficiently trained in the relevant disciplines so as to reduce errors, improve the quality of claims processing, and successfully complete newly-implemented certification requirements (see GRV at 2 - 3 ¶¶ 5(d)-(e); hereafter the “Training Claim”);[3] and
3. failed to properly implement a fair and impartial performance appraisal system that assures that quantitative measures of performance are not emphasized to the detriment of measures of the quality of that performance (see GRV at 4 ¶ 6(a); hereafter the “Performance Appraisal Claim”).[4]

While recent disputes between management and Local 2823 (and certain of its officers) unfortunately have created an adversarial atmosphere and tone, it is important to underscore and reaffirm that Local 2823’s fundamental reason for instituting this Grievance is to improve the quality of the processing of benefits claims by assuring that those responsible for reviewing such claims are (i) encouraged and expected to perform high quality reviews (even where doing so may reduce the quantity of claims that can be reviewed), (ii) sufficiently trained to perform these high quality reviews, and (iii) appraised based both on the quality as well as the quantity of their ratings -- all of which, Local 2823 believes, is consistent with and required by VA policy, applicable agreements of the parties, and applicable law. 

Local 2823 believes that the best way to achieve these objectives is by working collaboratively and cooperatively with management to achieve them.[5]  Accordingly, Local 2823 and the undersigned request that within the next two weeks you provide them with a date and time when the we can sit down with you and your management team in the next sixty days to see if there is a way that the parties can work together to accomplish the aforementioned objectives and resolve their differences by means of such ADR.[6] 

If, however, management is unwilling to work collaboratively to achieve these objectives, then Local 2823 has a responsibility to its members (and to veterans) to prosecute the Grievance vigorously by commencing arbitration proceedings, which Local 2823 will not hesitate to do.  Moreover, should the matter proceed to arbitration, for the reasons set forth below, we are confident that the arbitrator will find in Local 2823’s favor and that your legal and other objections to the Grievance that are recited in the Memorandum will not be sustained.

2. The Culture Claim.

As set forth in the Grievance, management has: (1) established an environment in which “there is an extreme pressure to produce minimally acceptable work at any cost”; (2) “developed an employee culture where striving to achieve unreasonable production criteria is paramount and … actually doing difficult necessary work on cases is strongly discouraged on penalty of removal”; and (3) commonly expresses sentiments such as, “just decide the case and let the veteran appeal.”  (See GRV at 4 ¶ 6(a); id. ¶¶ 6(a), (b) & (d).) 

1. The Culture Claim Is Sufficiently Particular. 

The Memorandum your office issued takes exception to the Grievance, inter alia, on the grounds that it is insufficiently particular in that it does not identify: (1) “any specific acts that are being grieved”; (2) “any specific times, dates and places for any acts being grieved”; and (3) “any rationale supporting or even explaining how VBA’s alleged conduct violated any negotiated agreements or law.”  (Mem. at 1 ¶ 3.)  The Memorandum, however, notably fails to identify any agreement or law requiring that Local 2823’s step-three grievance (see GRV at 1 ¶ 1) be stated with greater particularity -- because there is none. 

While the Master Agreement recites that a step-two grievance “must state, in detail, the basis for the grievance and the corrective action desired” (MA at 166 (Art. 42) § 7 (emphasis added)), no such requirement is prescribed for a step-three grievance like the one at issue here.  Regardless, even were the Grievance deemed a step-two grievance (or deemed bound by a similar “detailed basis” requirement), the Grievance does “state, in detail, the basis for the grievance” -- e.g., the Culture Claim, the Training Claim, and the Performance Appraisal Claim.  Moreover, the Master Agreement does not state that “all facts” supporting a grievance must be recited in the grievance in order to satisfy the “detailed basis” requirement of Article 42 § 7; it does not require that all “acts” encompassed by the grievance be separately listed; it does not require specification of times, dates, and places for all acts encompassed by a grievance; and it does not require an explanation of each of the ways in which the conduct at issue violated each applicable agreement and/or law.  Nor would it be reasonable to impose such a particularized pleading requirement on Local 2823 -- before any documents have been turned over by management relating to the claims pled as the basis for the Grievance.

2. The Culture Claim Is Based On Violations Of Applicable VA Policies, Agreements, And/Or Law. 

Actions of management giving rise to the Culture Claim violate VA policy as well as applicable agreements and law.

First, VA Directive 5023 properly states and acknowledges that “[t]he public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operation of the Government.”  See VA Dir. 5023 § 2(b).  Further, VA Directive 5023 provides that “VA management shall carry out its duties in a manner consistent with the terms and spirit of human resources policies, principles and procedures that encourage the highest standard of employee performance and the most efficient accomplishment of VA operations.”  Id. § 2(c) (emphasis added).  Thus, the VBA violates its own policy by promoting a working culture that discourages the highest standard of employee performance so as to more expeditiously process claims.  Moreover, the VBA further violates its policy respecting the efficient accomplishment of VA tasks by promoting a culture that likely results in more claims decisions that are vulnerable to reversal on appeal and re-processing on remand -- a less efficient manner of proceeding.

Second, as set forth in Article 7 § 1of the Master Agreement, “[s]ervice to the veteran is the cornerstone of the relationship between the Department and employees,” and the “parties recognize the importance of a strong commitment to a comprehensive Total Quality Improvement Program (TQI) in the Department.”  (Emphasis added).  Thus, discouraging quality reviews of benefits claims in the name of processing a greater quantity of benefits claims violates the service-to-the-veteran imperative that is to inform the work of both the Department and its employees and ignores the importance of quality considerations to the reviews undertaken -- both of which violate the letter and spirit of Article 7 § 1 of the Master Agreement.  (See also Am. Art. 26 § 1(A) (“The Department will strive for continuous improvement in performance to fulfill the Department’s commitment to providing quality customer service.”) (emphasis added); Agreement Between Dep’t of Veterans’ Affairs Cleveland Regional Office and AFGE Local 2823 [hereafter “Local Agreement” or “LA”] § 1(A) (“The mission of the Department of Veterans Affairs and this Regional Office is to service the veteran and beneficiaries with timely and qualityservice.”) (emphasis added).)  Further, pursuant to Article 43 § 3(B) of the Master Agreement, management has an obligation to bargain locally with Local 2823 as to, inter alia, the “methods and means of performing work.”  Thus, by refusing to bargain over the Culture Claim, which is squarely addressed to the Cleveland VARO’s methods and means of performing work, the Cleveland VARO is abrogating this provision of the Master Agreement as well. 

Third, an atmosphere that promotes quantity at the expense of quality is fundamentally contrary to the Department’s statutory obligations to improve the quality of the claims rating process as well as increase the quantity of claims processed.  See, e.g., 38 U.S.C. § 7734(1)(E) (requiring an annual report to Congress that includes, inter alia, “actions taken to improve the quality of services provided and the results obtained”) (emphasis added); id. § 7734(2) (requiring an annual report to Congress that includes, inter alia, “information with respect to the accuracy of decisions, including trends in that information.”). 

3. Local 2823’s Culture Claim Has Evidentiary Support. 

There is ample evidentiary support for Local 2823’s Culture Claim, both nationally and locally.

First, recently completed national studies and surveys have confirmed the perception among many claims ratings personnel nationwide that the Department has fostered an atmosphere in which quantitative objectives are pursued to the detriment of qualitative objectives.  For example, in a recent report issued by the Veterans’ Disability Commission in October 2007, they noted the following:

In respect of the criticism concerning balancing quality and quantity in employee performance, CNAC[[7]] discovered there exists a perception that VA emphasized quantity over quality.  In a national survey, 80 percent of raters said having enough time to process a claim was one of their top three challenges.  They were also asked to rate the availability of time to decide a claim, 54 percent of raters said availability of time was fair or poor.  It can be argued that this creates incentives for RVSRs to make decisions that are not always fully backed by  evidence, which leads to more appeals, and remands, and increases backlogs in the system.…

*     *     *

CNAC believes that the VA’s training difficulties are made exponentially worse because staff feel a need for more training and that training seems to be sacrificed to meet work quotas.  This emphasis has encouraged a high staff turnover at VA.  The quality of claims is lessened since inexperienced individuals are taking over for experienced raters.

Veterans Disability Benefits Comm’n, Honoring The Call To Duty: Veterans’ Disability Benefits In The 21st Century [hereafter, “10/07 VDBC Report”] 342 (Oct. 2007) (emphasis added).[8]

Moreover, in recent testimony to Congress, the Deputy Under Secretary for Benefits, Michael Walcoff, acknowledged that current quantitative measures of productivity, which do not take into account the complexity of benefits claims and numbers of issues raised by a claimant, are in need of revision:

To further enhance our ability to monitor performance, the study team recommends the creation of a performance measurement system focused on tracking the number of medical disabilities or issues claimed.  IBM believes that this issue-based performance measurement system, in conjunction with the existing claim-based performance measurement system, will result in a more accurate and detailed measure of productivity and workload.  Under the current claim-based performance measurement system, a regional office is given the same credit for completing a claim with one issue as a claim with forty issues.  The study team believes that measuring work output by both number of claims and number of issues at an organizational level is a more accurate assessment of a regional office’s productivity.  In addition, an issued-based performance measurement at an individual level will provide more specificity in the activities of staff and result in increased accountability overall.  [¶]  VBA agrees with the idea of adding an issue-based performance measurement system to our current reporting structure.

February 18, 2008 Statement of Michael Walcoff Before The House Committee On Veterans’ Affairs Subcommittee On Disability Assistance And Memorial Affairs, Examining The VA Claims Processing System (emphasis added).

Second, in addition to such national evidence supporting Local 2823’s Culture Claim, Local 2823 will be prepared at the arbitration hearing to present evidence of specific instances of actions taken by Cleveland VARO management contributing to the establishment and promotion of a culture in which the quantity of ratings decisions is valued to the detriment of quality.  For example, VSR production standards at the Cleveland VARO are set at 10 points per day, 25% higher than the national standard of 8 points per day.  Also, rating specialists at the Cleveland VARO only receive production credit for cases they have decided, and not for reviewing cases that are sent back to VSRs for further development.  This means that RVSRs are incentivized to decide cases without correcting errors in the file instead of “losing time” while they rework cases that are procedurally or developmentally flawed.  

4. Local 2823’s Clarified And Revised Information Requests Addressed To The Culture Claim Are Proper.

In addition, as noted in the Grievance, Local 2823 requests information from the Cleveland VARO that is normally maintained, reasonably available, and necessary for Local 2823 to fulfill its representational functions and responsibilities with respect to the prosecution of the Culture Claim, and, to that end clarifies and revises its requests for information, hereby requesting production of the following information created on or after January 20, 2000:

• Any communications between and among Cleveland VARO management and supervisors respecting efforts to achieve quantitative production requirements;
• Any communications between and among Cleveland VARO supervisors and employees respecting efforts to achieve quantitative production requirements;
• Documents sufficient to identify the numbers of employees who have received awards, bonuses, and/or promotions for achieving or exceeding quantitative production requirements;
• Documents sufficient to identify the numbers of supervisors who have received awards, bonuses, and/or promotions for achieving or exceeding quantitative production requirements;
• Documents sufficient to identify the numbers of employees (if any) who have received awards, bonuses, and/or promotions for achieving or exceeding qualitative performance standards;
• Documents sufficient to identify the numbers of supervisors (if any) who have received awards, bonuses, and/or promotions for achieving or exceeding qualitative performance standards;
• Documents sufficient to identify the number of employees who have received demotions, non-satisfactory ratings, or other disciplinary actions or negative performance ratings for their failure to achieve or exceed quantitative production requirements;
• Documents sufficient to identify the number of supervisors who have received demotions, non-satisfactory ratings, or other disciplinary actions or negative performance ratings for their failure to achieve or exceed quantitative production requirements;
• Documents sufficient to identify the number of employees  (if any) who have received demotions, non-satisfactory ratings, or other disciplinary actions or negative performance ratings for their failure to achieve or exceed qualitative performance standards;
• Documents sufficient to identify the number of supervisors  (if any) who have received demotions, non-satisfactory ratings, or other disciplinary actions or negative performance ratings for their failure to achieve or exceed qualitative performance standards;
• Any communications from employees in the Cleveland VARO to supervisors or other Cleveland VARO management complaining about quantitative production requirements and their effect on the quality of the claims processing;
• Any communications from supervisors in the Cleveland VARO complaining about quantitative production requirements and their effect on the quality of the claims processing;
• Any statistical information tracking the quantitative performance of the Cleveland VARO in terms of processing clams;
• Any statistical information tracking the quality of the Cleveland VARO in terms of processing claims; and
• Any statistical information respecting the number and rate of Cleveland VARO claims determinations that are reversed or remanded on appeal.

Moreover, it is plain that such information respecting the treatment of employees and supervisors with respect to the achievement of quantitative production requirements as compared to the treatment of employees and supervisors with respect to the achievement of qualitative performance standards is both relevant and necessary to understand and assess the working culture created by management favoring quantitative attainments over qualitative achievements.  (See MA at 177 (Art. 46) § 5 (“The Department agrees to provide the Union, upon request, with information that is normally maintained, reasonably available, and necessary for the Union to effectively fulfill its representational functions and responsibilities.  This information will be provided to the Union within a reasonable time and at no cost to the Union.”).).  See also AFGE Local 1345 v. Fed’l Labor Relations Auth., 793 F.2d 1360 (D.C. Cir. 1986) (Union entitled under 5 U.S.C. § 7114 to obtain information regarding two employees who had been dismissed from jobs within union’s bargaining unit upon request for information from employer, as union’s status as bargaining representative required it to have access to information to assess its responsibility, including information regarding dismissal of unit employees).[9]  Thus, Local 2823 expects to use the aforementioned information to evidence a consistent and long-standing emphasis on and encouragement of the attainment of quantitative production, with little or no concomitant emphasis or regard for the attainment of qualitative performance standards. 

3. The Training Claim.

As set forth in the Grievance, management has: (1) failed to honor its commitment “to a standard of excellence in the quality and quantity of training for all employees” (1/20/00 MOU ¶ 2), “as evidenced by the low pass rates of employees on previous tests and great disparities between … veterans served by different regional offices”; (2) failed “to provide training that significantly furthers the employee’s knowledge, skills and abilities to serve veterans”; (3) provided “ongoing training that … bears little resemblance to the training described in the January 20, 2000 MOU”; (3) failed to rotate employees in a manner that would enable them “to gain and maintain proficiency in all aspects of their job”; (4) disadvantaged employees seeking promotion by failing to adequately train them to process claims, thereby preventing them from successfully competing for and obtaining promotions, bonuses, awards, advances, and other merit-based compensation and/or benefits.  (GRV at 2-3 ¶¶ 5(d), (1), (2), (3), 5(e).)

1. The Training Claim Is Sufficiently Particular.

For the same reasons that Local 2823’s Culture Claim has been stated with sufficient particularity in the Grievance, its Training Claim has been stated in a sufficiently particular manner.  Again, your office’s Memorandum does not identify any authority requiring a more particularized statement of the facts underlying the Training Claim at this juncture, and we are aware of none.

2. The Training Claim Is Based On Violations Of Applicable VA Policies And/Or Agreements. 

Like the Culture Claim, Local 2823’s Training Claim is based on violations of VA policies, applicable agreements, and applicable law.

First, as noted by Deputy Under Secretary for Benefits, Ronald R. Aument, in a statement to Congress last October, training is important, because “[c]ritical to improving claims accuracy and consistency is ensuring that our employees receive the essential guidance, materials, and tools to meet the ever-changing and increasingly complex demands of their decision-making responsibilities.”  October 16, 2007 Statement of Ronald R. Aument, Deputy Under Secretary For Benefits, Before The House Veterans’ Affairs Subcommittee On Oversight And Investigations [hereafter, 10/16/07 Aument Testimony].  As summarized by Under Secretary Aument, the training regimen that the VA is supposed to follow is intended to be centralized, standardized, and comprehensive:

[1]  New hires receive comprehensive training and a consistent foundation in claims processing principles through a national centralized training program called “Challenge.”  [2] After the initial centralized training, employees follow a national standardized training curriculum (full lesson plans, handouts, student guides, instructor guides, and slides for classroom instruction) available to all regional offices.  Standardized computer-based tools have been developed for training decision-makers (71 courses completed and an additional 5 in development).  Training letters and satellite broadcasts on the proper approach to rating complex issues are provided to the field stations.  [3]  In addition, a mandatory cycle of training for all Veterans Service Center employees has been developed consisting of an 80-hour annual curriculum.

10/16/07 Aument Testimony.  And the VA’s most recent annual report again reiterates that “[t]raining remains a priority….”  11/07 VA Report at 199.  But notwithstanding these published policies and statements, and as set forth below, Local 2823 has reason to believe that the training provided by the Cleveland VARO: (1) does not provide new hires with “comprehensive training and a consistent foundation in claims processing principles”; (2) does not assure that incumbent employees follow a “national standardized training curriculum” that is made equally and fully available to all within the Cleveland VARO; and (3) does not assure that all employees receive the full cycle of training and complete an 80-hour curriculum each year.

Second, the applicable agreements similarly make clear that training is critical and the Department is responsible for providing it on a fair and equitable basis.  Specifically, Master Agreement Article 34 § 1(A) provides as follows:

The Department and the Union agree that the training and development of employees is of critical importance in carrying out the mission of the Department.  In recognition of this, the Department will provide training and career development opportunities to employees of the bargaining unit.  The Department is responsible for ensuring that all employees receive the training necessary for the performance of the employees’ assigned duties.

(MA at 142 (Art. 34) § 1(A) (emphasis added).)  Moreover, the Master Agreement requires fair and equitable administration of training among employees.  (See, e.g., MA at 143 (Art. 34) § 3(C) (“When resources for training are limited, approval for training funds will be based on fair criteria that are equitably applied.”) (emphasis added).)  Further, the Master Agreement requires the Department to inform employees, at least annually, about training opportunities, policies, and nomination procedures.  (See id. at 143 (Art. 34) § 6(A) (“The Department shall inform employees, at least annually, about Department training opportunities, policies, and nomination procedures.  Upon request, the Department will advise individual employees of training opportunities that meet identified educational or career objectives.”).  Finally, and perhaps most importantly, the Master Agreement makes clear that such training matters are appropriate subjects for local bargaining, stating: “[p]rocedures which ensure fair and equitable training opportunities are appropriate subjects for local bargaining.”  (MA at 144 (Art. 34) § 9 (emphasis added).[10])

Yet once again, as set forth below, Local 2823 has reason to believe that the Cleveland VARO is not honoring its training and bargaining obligations under the Master Agreement, inasmuch as the Cleveland VARO: (1) has not provided training and career development opportunities to all employees; (2) has not ensured that all employees have received the training necessary for the performance of their assigned duties; (3) has not used fair criteria, equitably applied, to assure that training is appropriately distributed among and between employees; (4) has not advised individual employees who request such information of training opportunities that meet identified educational or career objectives, including, but not limited to, VSR and/or RVSR certification; and (5) has refused to bargain with Local 2823 to ensure that fair and equitable training opportunities are made available to all employees.

Moreover, as regards training related to certification of VSR and RVSR personnel, the parties 1/20/00 MOU provides that the Department has a number of obligations, relating to training, reciting in relevant part the following:

• “VBA commits to a standard of excellence in the quality and quantity of training for all employees.  We will ensure training programs, which are the core and prerequisite to certification, are complete and sufficient to provide employees the necessary tools to become certified.  There will be a direct relationship between the training program and certification.”  (1/20/00 MOU ¶ 2 (emphasis added)).
• “Employees will proceed through standardized training such as the TPSS program, which may include pre and post tests for the purpose of determining the efficacy of training.  Training will include mentoring, on-the-job-training and ongoing feedback.”  (1/20/00 MOU ¶ 3 (emphasis added).)
• “Where incumbent employees have not been performing the full range of duties due to specialization or for other reasons, at the employees request, we will ensure that they are provided training sufficient for them to participate in the certification program.”  (1/20/00 MOU ¶ 6 (emphasis added).)
• “A copy of this MOU will be furnished to the Local President of all VBA facilities represented by AFGE.  Local unions will be given the opportunity to bargain over appropriate issues not otherwise in conflict with this or other national level agreements, prior to local implementation.”  (1/20/00 MOU ¶ 10 (emphasis added).)

However, once again, as set forth below the Cleveland VARO has violated its obligations under the 1/20/00 MOU, because: (1) the quality and quantity of training made available to employees does not rise to the promised standard of excellence; (2) training programs are not complete and sufficient to provide employees the necessary tools to become certified; (3) employees have not proceeded through standardized TPSS training, and the training generally has not included mentoring, on-the-job training or ongoing feedback; (4) incumbent employees who have not been performing the full range of duties due to specialization or other reasons have not been provided training sufficient for them to participate in the certification program; and (5) management has failed and refused to bargain over these issues.

Finally, it is important to note that while your office’s Memorandum asserts that it is not obligated to bargain with Local 2823 regarding these training matters relating to VSR and RVSR certification in light of certain alleged positions taken by the National Union in negotiations with the Department, those assertions ignore the facts that: (1) the matters for which Local 2823 has sought to bargain are not the same as those put at issue by the dispute at the national level (and the Memorandum makes no attempt to explain why they are); (2) regardless of the resolution of VA’s dispute with the National Union, that will not resolve the training issues for which Local 2823 has sought to bargain locally; (3) the Memorandum’s assertions regarding the exclusive recognition of the National Union ignore that the Department agreed with the National Union that local bargaining would still occur and the appropriate VARO would still be obligated to engage in such local bargaining pursuant to the applicable provisions of the Master Agreement.[11] 

3. The Training Claim Has Evidentiary Support.

Once again, there is ample evidentiary support for Local 2823’s Training Claim, both nationally and locally.

First, both the Office of the Inspector General and third-party studies have found that disparities in training across offices account for at least some of the differences across offices with respect to the average amount of compensation awarded to a claimant.  For example, the Deputy Inspector General, in a statement to Congress, represented that “the degree of rater subjectivity can be influenced by … the amount of training and rater experience.”  October 16, 2007 Statement Of Jon A. Wooditch, Deputy Inspector General, Before The Subcommittee On Oversight And Investigations Committee On Veterans’ Affairs - U.S. House Of Reps. Hrng On Disability Claims Ratings & Benefits Disparities Within The VBA [hereafter, “10/16/07 Wooditch Testimony”].  Moreover, variations in training across offices also were identified by the Institute for Defense Analyses (“IDA”) in its study, Analysis of Differences in VA Disability Compensation (hereafter, the “IDA Study”), as a significant factor responsible for differences in compensation awarded across offices.  See, e.g., Hope Yen, AP, Washington Post (July 19, 2007) (“But the study released to AP found that roughly one-third of the problems could be blamed on poor VA standards and inadequate training.”).[12]  Indeed, one of the recommendations of the IDA Study was to “[s]tandardize initial and on-going training for rating specialists”  10/16/07 Aument Testimony.  Thus, this national evidence suggests that the Cleveland VARO is not receiving training commensurate with that made available to raters in other offices.

Moreover, the current insufficiency of training programs and policies has been confirmed by the recent report of the Veterans’ Disability Benefits Commission, which states:

VBA regional office staff must receive adequate education and training.  Quality reviews should be performed to ensure these frontline workers are well versed to rate claims.  Adequate resources must be appropriated to hire and train these workers to achieve a manageable claims backlog.

(10/07 VDBC Report 338 (Recommendation 9.5).)

Second, as set forth in the Grievance, there are numerous instances of the Cleveland VARO failing to implement equitably, promptly, and appropriately training.  For example, as a result of the Claims Process Improvement teams that have been formed to focus on specific problem areas, employees are not cycled through all areas and do not receive on-the-job training in many areas before they are required to sit for certification exams covering all areas.  (See GRV at 2 § 5(3).)  Moreover, training that has been provided has not been comprehensive, but instead has largely been addressed to the specific tasks assigned an employee at the time of hire.  (See id.)  The initial training for VSRs in the Cleveland VARO is focused on the tasks performed by the team to which the VSRs have been assigned, either pre-development or post-determination.  Then, 85%-90% of the training that the VSRs receive on the job consists of overview courses that also cover tasks they perform in their current jobs.  This training regimen leaves VSRs unprepared for their new duties when they switch teams and the quality of their work (and their production) suffers.  In addition to these problems with VSR training, The Cleveland VARO also fails to train RVSRs appropriately.  At the time the grievance was filed, few RVSRs in the office had completed the TPSS training modules that are required for first-year rating specialists.  Instead of addressing this deficiency, the Cleveland VARO ignores it: three rating specialists were promoted in October 2007, even though they had failed to complete the basic compensation training module.

4. Local 2823’s Clarified And Revised Information Requests Addressed To The Training Claim Are Proper.

In addition, as noted in the Grievance, Local 2823 requests information from the Cleveland VARO that is normally maintained, reasonably available, and necessary for Local 2823 to fulfill its representational functions and responsibilities with respect to the prosecution of the Training Claim, and, to that end clarifies and revises its requests for information, hereby requesting production of the following information created on or after January 20, 2000 (except as otherwise indicated):

• Documents sufficient to show the number of employees (including VSRs and RVSRs) who have received training in the Cleveland VARO, the amount of training that they have received, and the types of training that they have received in each of the fiscal years 2002, 2003, 2004, 2005, 2006, 2007, and 2008 (to date);
• Documents sufficient to show all plans and programs for training employees (including VSRs and RVSRs) at the Cleveland VARO or elsewhere for the fiscal years 2002, 2003, 2004, 2005, 2006, 2007, and 2008 (to date);
• All communications from employees complaining, praising or otherwise evaluating the amount, content, type, availability, or other aspects of training provided or made available to employees;
• All studies, audits, and/or investigations by the VA and/or third parties (including, but not limited to, the IDA Study) addressing the adequacy of training made available to and/or required of employees at the Cleveland VARO and nationally (including, but not limited to, VSRs and RVSRs);
• Documents sufficient to show all training that is required and/or suggested for VSR and/or RVSR certification, including, but not limited to, copies of instructions for RVSR and/or VSR national training requirements;
• Documents sufficient to show all on-the-job training accomplished and its relationship to certification of VSRs and/or RVSRs;
• A copy of the curriculum formally identified as VSR “Readiness Training”;
• A copy of any training materials respecting “the Candidate Guide”;
• A copy of any “Boot Camp” test or similar Cleveland VARO practice test;
• A copy of all materials found at the following website address:  http://cptraining.vba.va.gov/C&PTraining/VSR/VSRCerTng/VSRCertCurriculum.htm;
• A copy of the link to the VSR Certification Training Guide that has been provided to each employee in the Cleveland VARO who is eligible for certification; and
• A copy of all materials found at the following website address:  http://cptraining.vba.va.gov/C&PTraining/VSR/VSRCertTng/Documents/VSR Cert Training Guide.pdf.

Further, it is plain that production of the requested training information is relevant and necessary to Local 2823’s prosecution of its Training Claim, as the information will be used to establish the specific departures of the Cleveland VARO from applicable training requirements, agreements, and policies.

4. The Performance Appraisal Claim.

In light of the foregoing, and as set forth in the Grievance, “management has abrogated its duty to maintain a fair and impartial performance appraisal system under multiple sections of Master Agreement 26,” and has otherwise abrogated VA policy and guidance in its application of the existing performance appraisal system.  (GRV at 4 ¶ 6(a).)

1. The Performance Appraisal Claim Is Sufficiently Particular.

For the same reasons that Local 2823’s Culture and Training Claims have been stated with sufficient particularity in the Grievance, Local 2823’s Performance Appraisal Claim has been stated in a sufficiently particular manner.  Again, your office’s Memorandum does not identify any authority requiring a more particularized statement of the facts underlying the Performance Appraisal Claim at this juncture, and we are aware of none.

2. The Performance Appraisal Claim Is Based On Violations Of Applicable VA Policies And/Or Agreements. 

Local 2823’s Performance Appraisal Claim is based on violations of applicable VA policies and/or agreements.

First, as set forth in VA Directive 5023, “[t]he public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operation of the Government.”  See VA Dir. 5023 § 2(b).  Further, as VA Directive 5023 also states, “VA management shall carry out its duties in a manner consistent with the terms and spirit of human resources policies, principles and procedures that encourage the highest standard of employee performance and the most efficient accomplishment of VA operations.”  See id. § 2(c) (emphasis added). 

Management has abrogated both of these VA imperatives, however, by implementing a performance appraisal system that, for the reasons set forth above and below: (1) does not promote the “highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of” VA operations; and (2) is fundamentally inconsistent “with the terms and spirit of human resources policies, principles and procedures that encourage the highest standard of employee performance and the most efficient accomplishment of VA operations.” 

Second, as noted in the Grievance, management’s implementation of the existing performance appraisal system also contravenes applicable provisions of Article 26 of the Master Agreement.  Specifically, the relevant provisions of Article 26 (as amended) that are abrogated by management’s implementation and application of the existing performance appraisal system include the following:

• “In its entirety and application, the performance appraisal process will to the maximum extent feasible, be fair, equitable, and strictly related to job performance as described by the employee’s job description.”  [Am. Art. 26 § 3(A) (emphasis added).]
• “Performance appraisals shall be fair and objective.”  [Id. § 3(C) (emphasis added)]
• “The union may provide input into any changes to performance standards and/or establishment of new performance standards.”  [Id. § 5(A).]
• “Performance standards and elements to the maximum extent feasible shall be reasonable, realistic, attainable, and sufficient under the circumstances to permit accurate measurement of an employee’s performance, and adequate to inform the employee of what is necessary to achieve a ‘Fully Successful’ level of achievement.”  [Id. § 5(C) (emphasis added).]
• “The Union shall be given reasonable written advance notice … when Management changes, adds to, or establishes new elements and performance standards.  Prior to implementation of the above changes to performance standards, management shall meet all bargaining obligations.”  [Id. § 5(E).]
• “Normally, elements are not weighted or assigned different priorities.  However, the Department will inform the employee, at the time the elements and standards are communicated, whether aspects of any job elements are to be accorded different priority.  If the elements, standards, or priority changes, that change(s) will be communicated to the employee when it becomes effective.”  [Id. § 5(H).]

Notwithstanding these obligations, however, management has breached the foregoing provisions of Article 26 of the Master Agreement by, inter alia: (1) applying the existing performance appraisal system in a manner that is unfair, inequitable, and almost exclusively related to the achievement of quantitative production targets; (2) establishing certification and related requirements that are now part of the performance appraisal while refusing any input from Local 2823 respecting the content and implementation of the same; (3) failing to give reasonable written advance notice to Local 2823 respecting the implementation of newly-established certification and related training requirements; (4) weighting quantitative production measures more highly than accuracy measures without formally apprising employees of the same; (5) utilizing statistical production data to evaluate individual performance in a manner that is unreliable, invalid, unfair and inequitable because it fails to take into account the number of issues raised by claims and the complexity of the claims process.

3. The Performance Appraisal Claim Has Evidentiary Support.

Like its other claims, Local 2823’s Performance Appraisal Claim also is amply supported both nationally and locally.

First, as adverted to in Deputy Under Secretary Wolcoff’s recent testimony to Congress this past February, even independent third-party consultants have found problematic the existing performance appraisal system’s use of quantitative production criteria that fail to account for the numbers of issues raised and complexity of claims.  (See 2/14/08 Walcoff Testimony.)  And, perhaps more importantly, in testifying before Congress, the Veterans’ Benefits Administration (“VBA”) has stated that it “agrees with the idea of adding an issue-based performance measurement system to our current reporting structure.”  (Id.)  Further, as noted above, the Veterans’ Disability Benefits Commission similarly found that greater attention to quality should be paid in assessing the performance of employees.  (See 10/07 VDBC Report 338.)

Second, in terms of the Cleveland VARO, the existing performance appraisal system applied by management again penalizes raters who take the time to assure accurate ratings of multi-issue and complex claims and favors those who are less accurate but meet or exceed applicable production quotas.  For example, a case with a minimal amount of evidence, such as a well-documented knee injury, is given the same production credit as a multi-volume multi-issue case for PTSD.  Raters are therefore tacitly (and sometimes overtly) encouraged to avoid processing difficult claims.  A different problem is the older case whose record has been developed in several stages and requires follow-up with several treating physicians.  If an RVSR spends one hour with the case and discovers that a private treatment record identified by the veteran is missing, the RVSR should defer a decision on that case.  The RSVR, however, does not receive any production credit under the performance plan for deferring this decision.  Instead, the performance plan gives the RVSR the stark choice of ignoring the missing evidence and deciding the case or (correctly) deferring the case and absorbing the entire time spent with that case as lost.

4. Local 2823’s Information Requests Addressed To The Performance Appraisal Claim Are Proper.

In addition, as noted in the Grievance, Local 2823 requests information from the Cleveland VARO that is normally maintained, reasonably available, and necessary for Local 2823 to fulfill its representational functions and responsibilities with respect to the prosecution of the Performance Appraisal Claim, which requests are encompassed by the requests set forth above with respect to the Culture and Training Claims.  Again, the requested information is both relevant and necessary, as it will be used by Local 2823 to assess the manner in which the existing performance appraisal system has been applied by the Cleveland VARO and to demonstrate the ways in which the current system violates VA policy and provisions in Article 26 of the Master Agreement.

5. The Veterans’ Disability Benefits Claims Modernization Act Of 2008, H.R. 5892.

Lastly, before closing, we wish to note that one of the reasons that Local 2823 believes a meeting to discuss the parties’ differences is advisable at this juncture is that pending legislation may -- at least in Local 2823’s view -- moot many of these disputes. 

In particular, the Veterans’ Disability Benefits Claims Modernization Act Of 2008, H.R. 5892, 110th Cong. (2d Sess. 2008) (the “Proposed Legislation”) was referred to the House Committee on Veterans’ Affairs in April 2008, on July 29, 2008, an amended bill was favorably reported out of committee to the House floor, and on July 30, 2008, the amended bill was passed by the House on a roll-call vote of 429-0.  See 154 Cong. Rec. H7256 - H7263 (daily ed. July 29, 2008); 154 Cong. Rec. H7518 (daily ed. July 30, 2008).  If enacted in its current form, the Proposed Legislation would: (1) require the Department to engage a third-party to annually assess the quality of claims processing across the VAROs (see Proposed Legislation § 106), thereby potentially addressing concerns giving rise to Local 2823’s Culture Claim; (2) require the Department to study and develop new certification standards and programs after obtaining appropriate input from employees and their representatives (see id. § 105), thereby potentially addressing concerns giving rise to a portion of Local 2823’s Training Claim; (3) require the Department to study and evaluate training made available to employees (see id. §106(a)(3)), thereby potentially addressing concerns giving rise to another portion of Local 2823’s Training Claim; and (4) study and implement new performance standards that would place greater emphasis on the quality of ratings decisions and less emphasis on the quantity of them (see id. § 103), thereby potentially addressing the concerns giving rise to Local 2823’s Performance Appraisal Claim.[13]

Accordingly, any information that management of the Cleveland VARO could provide to Local 2823 respecting the Department’s position with respect to the Proposed Legislation -- including whether the Department opposes, supports, or partially opposes and partially supports the Proposed Legislation -- would be beneficial. 

*     *     *

Thank you for your prompt attention to the foregoing matters, and I look forward to a response from your office on or before September 15, 2008, so that the parties may quickly reach agreement on a date when representatives of management and Local 2823 may sit down together in Cleveland to further discuss (and hopefully resolve) the matters put at issue by Local 2823’s Grievance.  Should I be able to answer any questions in the interim, please do not hesitate to contact me.

Sincerely,

Jeffrey K. Lamb for Drew G.A.Peel

cc:  John A. Limposte, Assistant Director  

[1] Local 2823 does not address herein all the matters raised by its Grievance or assertions made by your office’s Memorandum in response, as Local 2823 does not believe that such unaddressed matters need to be resolved at this juncture to have a productive discussion of the principal disputes between the parties.  However, Local 2823 does not waive and expressly reserves all rights and claims it has, including those that are not expressly addressed herein but are otherwise fairly encompassed by the Grievance.

[2] This may be one of the reasons why Ohio ranks second to last nationally in the average compensation awarded to its disabled veterans according to the VBA’s Annual Benefits Report for FY2006.  See, e.g., The Plain Dealer at A7 (Apr. 12, 2008) (summarizing disparate disability compensation averages across states, with only Indiana having a lower average than Ohio, but having fewer than half of the number of disability recipients as Ohio); accord VBA Annual Benefits Report - Fiscal Year 2006 at 103-53 (state-by-state figures).

[3] See, e.g., 1997 Master Agreement between the Dep’t of Veterans Affairs and the Am. Fed’n of Gov’t Employees [hereafter, “MA”] at 142 (Art. 34) § 1(A) (“The Department and the Union agree that the training and development of employees is of critical importance in carrying out the mission of the Department.”); id. § 9 (“Procedures which ensure fair and equitable training opportunities are appropriate subjects for local bargaining.”).  See also 1/20/00 VBA-AFGE Mem. of Understanding [hereafter “1/20/00 MOU”] ¶ 2 (“VBA commits to a standard of excellence in the quality and quantity of training for all employees.”); id. ¶ 10 (“Local unions will be given the opportunity to bargain over appropriate issues not otherwise in conflict with this or other national level agreements, prior to local implementation.”); 5/19/06 Mem. of Understanding; Interim Cert. MOU for FY2006 [hereafter “5/19/06 MOU”] at preamble (“The terms of the original MOU on Certification dated 2000 are still in effect.”); id. ¶ 15 (“The parties may negotiate locally on this subject provided it does not conflict, interfere with, or impair the implementation of this MOU and the Master Agreement.”).

[4] See, e.g., Am. Art. 26 § 1(D) (“The parties share an interest in improving the performance of the Department’s workforce”); id. § 1(H) (“The performance appraisal process as set forth in this Article is intended to be innovative and evolutionary in nature.  Its effectiveness is critical to the Department achieving its mission.”).

[5] See, e.g., MA at 4 (Preamble) § 2 (“The Department and the Union agree that a constructive and cooperative working relationship between labor and management is essential to achieving the Department&r